United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL, UNITED STATES DISTRICT JUDGE
se defendant, Miguel Morris, has filed two identical
Hazel-Atlas motions, Hazel-Atlas Glass Co. v.
Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88
L.Ed. 1250 (1944), challenging his conviction and sentence as
a fraud upon the court. We decide that the motions are really
second or successive motions under 28 U.S.C. § 2255
which we lack jurisdiction to consider. Defendant is free to
seek the approval of the Third Circuit to file a second 2255
April 2012, Defendant was indicted for knowingly and
intentionally possessing with the intent to distribute five
kilograms or more of cocaine, a violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A)(i). On December 4,
2012, Defendant was found guilty after a bench trial. In
April 2013, he was sentenced to 264 months of imprisonment.
His direct appeal was denied. United States v.
Morris, 561 F. App'x 180 (3d Cir.
2014)(nonprecedential). In May 2015, we denied his motion
under 28 U.S.C. § 2255, United States v.
Morris, 2015 WL 2405055 (M.D. Pa.), and the Third
Circuit denied a certificate of appealability. United
States v. Morris, No. 15-2722 (3d Cir. Jan. 12, 2016).
in October 2016, Defendant filed a motion under the All Writs
Act, 28 U.S.C. § 1651, seeking the benefit of the
Supreme Court's decision in Johnson v. United
States, ___, U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569
(2015), in connection with his sentence. In November 2016, we
denied the motion. United States v. Morris, 2016 WL
6599959 (M.D. Pa.). Defendant's appeal of that ruling is
pending in the Third Circuit. In re Morris, No.
17-1088 (3d Cir.).
Hazel Atlas motions raise the following claims: (1)
the investigating officer used falsehoods, such as fabricated
drug buys, in the affidavit of probable cause used to obtain
the search warrant; (2) the state prosecutor approved the
application for the search warrant and suborned the
investigating officer's fraud and perjury; (3) the trial
testimony presented more fraud, using fabricated documents
and “snitch” testimony from persons who made
deals with the government; (4) one trial witness falsely
testified to an arrest for money laundering occurring in 2008
but really had to have taken place in 2007 because otherwise
Defendant and the witness would have been charged with a
parole violation, which never happened; and (5) the
investigating officer testified to controlled buys that could
not have happened because the person used to make the buys
had been evicted from the apartment where he was supposedly
living at the time of the controlled buys.
motions challenge his conviction and sentence. They are
therefore motions under section 2255. See Massey v.
United States, 581 F.3d 172, 174 (3d Cir. 2009)(“A
motion to vacate sentence pursuant to 28 U.S.C. § 2255
is the means to collaterally challenge a federal conviction
or sentence”). That Defendant styles them as Hazel
Atlas motions is immaterial. Ferguson v. United
States, No. 03-CR-72, 2016 WL 1578777, at *7-8 (W.D. Pa.
Apr. 20, 2016)(a Hazel Atlas action challenging a
conviction or sentence must be treated as a section 2255
motion, and a second or successive one to a previously filed
section 2255 motion); United States v. Spikes, No.
08-CR-201, 2015 WL 5460567, at *2-3 (E.D. Pa. Sept. 16,
2015)(a Hazel Atlas motion challenging a conviction
or sentence is a second or successive section 2255 motion to
a previously filed section 2255 motion).
Defendant has already filed a section 2255 motion, which was
denied. Defendant must therefore meet the gatekeeping
requirements for filing a second or successive section 2255
motion, United States v. Tyler, No. 96-CR-106, 2007
WL 2319796, at *2 (M.D. Pa. Aug. 13, 2007)(Caldwell, J.),
meaning that before he files a second or successive section
2255 motion, he must obtain a certificate of appealability
from the court of appeals authorizing the motion. 28 U.S.C.
§§ 2255(h), 2244. When a prisoner files such a
motion without first obtaining the appropriate certificate, a
district court lacks jurisdiction to entertain it.
Blystone v. Horn, 664 F.3d 397, 412 (3d Cir. 2011).
respect to the instant motions, Defendant has failed to
obtain the requisite certificate. We therefore lack
jurisdiction to hear the second or successive § 2255
motions, and must dismiss them, or transfer them to the Third
Circuit to be treated as an application for a certificate of
appealability. Robinson v. Johnson, 313 F.3d 128,
139 (3d Cir. 2002). We have decided to dismiss the motions,
but Defendant is free to seek a certificate of appealability
from the Third Circuit.
event, there is serious doubt whether a Hazel Atlas
motion can be used in a criminal case. See United States
v. Washington, 549 F.3d 905, 912 (3d Cir. 2008). In
Washington, the Third Circuit stated that federal
courts do not have inherent authority to vacate criminal
judgments procured by fraud, id. at 911-12, 914, in
the course of holding that a district court lacked inherent
authority to modify a sentence procured by fraud.
Id. at 917. In a few nonprecedential decisions after
Washington, the Third Circuit has cited
Washington for the proposition that federal district
courts “do not have the inherent authority to set aside
criminal judgments” for fraud on the court. United
States v. Lebron, 598 F. App'x 817, 818 (3d Cir.
2015)(rejecting the defendant's claim he could pursue
“an independent action to set aside his criminal
judgment for fraud on the court”); Pelullo v.
United States, 487 F. App'x 1, 2 (3d Cir.
2012)(district court properly dismissed a motion to dismiss
the indictment or grant a new trial based on prosecutors'
alleged falsehoods because in part, federal courts lack
inherent authority to vacate criminal judgments procured
through fraud); United States v. Brown, 445 F.
App'x 467, 468 (3d Cir. 2011) (federal courts have no
inherent power to vacate criminal judgments based on fraud on
although we intend no ruling on the merits of the claim,
Defendant does not appear to satisfy the requirements of a
Hazel Atlas fraud-on-the-court claim. The Third
Circuit has stated that the elements of such a claim are as
‘(1) an intentional fraud; (2) by an officer of the
court; (3) which is directed at the court itself; and (4) in
fact deceives the court.'
United States v. Burke, 193 F. App'x 143, 144
(3d Cir. 2006)(nonprecedential)(quoting Herring v. United
States, 424 F.3d 384, 386-87 (3d Cir. 2005)).
“[T]hese elements must be supported by ‘clear,
unequivocal and convincing evidence.'” Id.
(quoting Herring, 424 F.3d at 389). The conduct must
be of the most egregious kind and directed at the court
itself. Herring, 424 F.3d at 387. “[P]erjury
by a witness is not enough to constitute fraud upon the
court.” Id. at 390.
Defendant alleges that certain witnesses testified falsely at
the suppression hearing and at trial. This claim of perjury
does not appear to be enough to show the fraud required. It
is more of a challenge to the witness's credibility, a
claim Defendant raised on direct appeal in connection with
his challenge to the search warrant. Morris, 561 F.
App'x at 184-85.
issue an order dismissing the Hazel Atlas motions
for lack of jurisdiction since they are in substance second
or successive section 2255 motions. As noted, Defendant is
free to seek a certificate of appealability from the Third